ON THE MERITS.
CHRISTIAN, Judge.The record having been perfected, the appeal is reinstated and the case considered on its merits.
*544Appellant waived a jury and submitted his case to the court upon a plea of guilty. Appellant contends that certain provisions of chapter 43, Acts of the 42nd Legislature, Regular Session, are unconstitutional. We quote section 1 of the act as follows:
“The defendant in a Criminal prosecution for any offense classified as a felony less than a capital offense, shall have the right, upon entering a plea of guilty, to waive the right of a trial by a Jury, conditioned, however, that such waiver must be made in person by the defendant in open Court with the consent and approval of the Court and the duly elected and acting Attorney representing the State. Provided, that said consent and approval by the Court shall be entered of record on the Minutes of the Court and the consent and approval of the Attorney representing the State shall be in writing, duly signed by said Attorney and filed in the papers of the Cause before the defendant enters his plea of guilty.
“Provided, that before a defendant who has no Attorney can agree to waive a Jury, the Court must appoint an Attorney to represent him.”
In Joe McMillan v. The State, Opinion No. 15,817 (57 S. W. (2d) 125), delivered February 8, 1933, this court reached the conclusion that it was within the power of the Legislature to permit one accused of a felony to waive a jury in certain cases, and have his case tried before the court. We quote from the opinion as follows: “The denial of the right of the accused in a criminal case to waive a jury and submit his trial to the court resting upon a statutory declaration and not upon a provision of the Constitution, it is within the power of the Legislature to change or modify the procedure. That body having exerted its power by the enactment of the statute embraced in Chapter 43, Acts of the 42nd Legislature, Regular Session, by the insertion of Art. 10a and by amending Arts. 11 and 12, C. C. P., 1925, so as to modify the restriction upon the right of one accused of a felony to waive a jury in certain cases and have his case tried before the court, there exists no impediment or prohibition of the procedure followed in the present case.”
The judgment is affirmed.
Affimed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.